Could Canon Law be Changed to Permit Gay Marriage?

Q: Many countries today have legalized gay marriage. Could such a marriage ever be possible in the Catholic Church? Is it automatically invalid because they can never consummate the marriage or have children? I worry that governments might try to force Catholic priests to perform these marriage ceremonies. –Miroslav

A: It’s difficult to imagine that during the decades of preparatory work leading to the promulgation of the current Code of Canon Law in 1983, and the Catechism of the Catholic Church in 1992, any of the theologians and canonists working on these projects ever dreamed that the question of homosexual “marriage” would even come up. It’s amazing that this topic has gone from being utterly unthinkable to being a commonplace occurrence in such a short time.

Because this used to be a non-issue, there is no direct mention whatsoever in either the code or the catechism of what the Church says about homosexuals getting married. But that doesn’t mean that the Catholic Church is on the fence! It’s actually fairly easy to answer Miroslav’s question, by examining Catholic teaching on the sacrament of marriage and then applying it to the homosexual scenario he mentions. Let’s take a look.

Canon 1055.1 contains a very fundamental, theological statement about what marriage is all about: it is a covenant, by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered to the wellbeing of the two spouses, and to the procreation and upbringing of children. This wording wasn’t concocted out of thin air—it is based on the Second Vatican Council’s teaching on the subject, found in the 1965 Pastoral Constitution on the Church in the Modern World, Gaudium et Spes (GS):

The intimate partnership of married life and love has been established by the Creator and qualified by His laws, and is rooted in the conjugal covenant of irrevocable personal consent. Hence by that human act whereby spouses mutually bestow and accept each other, a relationship arises which by divine will and in the eyes of society too is a lasting one…. By their very nature, the institution of matrimony itself and conjugal love are ordained for the procreation and education of children, and find in them their ultimate crown. Thus a man and a woman, who by their compact of conjugal love “are no longer two, but one flesh” (Matt. 19:ff), render mutual help and service to each other through an intimate union of their persons and of their actions…. As a mutual gift of two persons, this intimate union and the good of the children impose total fidelity on the spouses and argue for an unbreakable oneness between them (GS 48).

The Catechism of the Catholic Church cites the same paragraph of GS as a source for its description of marriage in paragraph 1603, where it also adds that “The vocation to marriage is written in the very nature of man and woman as they came from the hand of the Creator.”

Theologians have written entire books about the nature of Christian marriage, and so it would be unrealistic to try to exhaust the topic here. But in short, the Church holds that the basic concept of marriage was created not by man, but by God Himself. By definition, it necessarily involves a man and a woman, for the natural complementarity of the sexes was a divine creation—as the very first chapter of Genesis asserts, “God created man in His image; in the Divine image He created him; male and female He created them” (Gen. 1:27). And the following chapter notes that God created woman as “a suitable partner for the man…. That is why a man leaves his father and mother and clings to his wife, and the two of them become one body” (Gen. 2:20, 24).

The Church’s definition of marriage does, as Miroslav referenced, indicate that children are a natural result of the spouses’ conjugal love. True, it’s undeniable that many marriages do not result in children—but this fact does not, in and of itself, affect the validity of the marriage (see “Fertility and Marriage Validity” for more on this). A Catholic marriage is not valid simplybecause the spouses have children. Rather, its validity and indissolubility hinge on its having been both ratified by the Church, and consummated by subsequently engaging in an act “apt for the procreation of children,” as canon 1061.1 carefully phrases it (a concept discussed in greater detail in “Canon Law and Consummating a Marriage”). If God ordains in His infinite wisdom that the marriage does not result in children, that does not mean it’s not a real marriage!

So let’s apply all of this now to the notion of a marriage between two persons of the same gender. It should be obvious by this point that the Church teaches that marriage is between a man and a woman, not because it randomly invented that definition in centuries gone by, but because Godmademarriagethatway. As we saw in “Are There Any Limitations on the Power of the Pope?” the Catholic Church will not, because it cannot, change any law which it holds to have been given to us by God Himself. For example, the Church can never declare that a parent can validly marry his/her child, because this will always be contrary to natural law (“natural law” being simply another name for a law established by the Creator, not merely by man). Similarly, the Church cannot “redefine marriage” in such a way that it would now include homosexuals living together and engaging in unnatural sexual activity—because doing so would destroy the very concept of what marriage is all about, a concept which was given to us by God.

Consequently, it is theologically impossible for the Catholic Church ever to accept that two persons of the same gender are “married” in the same way that a man and a woman are. To do so would completely destroy the Church’s understanding of what marriage is. But this unfortunately leads to the next issue that Miroslav mentioned: could the government of a nation with laws permitting gay marriage ever force priests to conduct Catholic weddings for homosexuals?

Sadly, given the direction in which many first-world countries are heading, it’s not terribly difficult to envision this situation! Politicians who are hostile to Catholic teaching could perhaps try to argue that by refusing to marry homosexuals, the Church is engaging in discrimination (ever a fashionable buzz-word). Such an allegation would, however, constitute nothing less than a direct attack on religious freedom—something which first-world countries today proudly claim to uphold. Any country which is really free will allow the Catholic Church to teach what it sincerely believes to be the truth, regardless of whether that teaching makes some people uncomfortable or not.

It’s impossible to predict the future, of course, but if priests were told by civil authorities that they had to celebrate homosexual wedding-ceremonies, it’s hard to imagine that the Catholic Church would willingly acquiesce! Such a refusal would be parallel to the Church’s refusal to allow priests to reveal what is told them in the confessional, even if law-enforcement authorities demand it (see “Can a Priest Ever Reveal What is Said in Confession?” and “Will Australian Priests Be Forced to Violate the Seal of Confession?” for more on this). Some aspects of some Catholic teachings may be negotiable, while others aren’t—and like the confessional seal, the fundamental meaning of Christian marriage cannot be negotiated away just because some government bureaucrats insist.

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About the author

Cathy Caridi, J.C.L., is an American canon lawyer who practices law and teaches in Rome. She founded this website to provide clear answers to canonical questions asked by ordinary Catholics, without employing all the mysterious legalese that canon lawyers know and love.
In the past Cathy has published articles both in scholarly journals and on various popular Catholic websites, including Real Presence Communications and Catholic Exchange.

Canon lawyers are not responsible for the content of canon law. The Supreme Legislator is. Only Pope Francis can change the Code of Canon Law, so if you're not happy with what the law says, please take it up with him.

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